The Culture of International Arbitration and The Evolution of Contract Law

Description

This study proposes a theory of international arbitration culture, tests this theory against real-world outcomes, and uses it to make predictions about the contract law principles that international arbitrators are likely to favour. Drawing on interviews with prestigious practitioners from a range of jurisdictions, as well as published arbitral awards, the writings of international arbitrators, and available statistical data on international arbitration, it presents
a comparative analysis of arbitral and judicial responses to contract law issues.
Part I develops a theory of arbitral decision-making as influenced by a legal culture specific to the international commercial arbitration community. It identifies the specific social norms that make up that culture and considers how these norms might affect arbitrators decision-making on matters of substantive contract law. Part II tests the explanatory power of the theory developed in Part I by applying it to published decisions of international commercial arbitrators on two discrete areas of
contract law: suspension of performance in response to non-performance and the interpretation of contracts. These case studies demonstrate that arbitrators and judges are likely to take divergent approaches, even when they are applying the same substantive laws. This divergence is explicable on the
basis of international arbitrations unique culture. Finally, the cultural theory of international arbitral decision-making is applied to make predictions about the ways that contract law is likely to evolve through the decisions of international arbitrators.

About Author

Joshua Karton is an Assistant Professor in the Faculty of Law at Queen's University in Kingston, Ontario, Canada, where he has taught since 2009. A graduate of Yale (BA 2001) and Columbia Law School (JD 2005), he is a member of the New York Bar. He practiced as an associate in the litigation/arbitration group at Cleary Gottlieb Steen & Hamilton LLP in New York before pursuing his doctoral studies at Cambridge, from which he graduated in 2011 with a PhD in law. This book is based on his PhD thesis, which was supervised by James Crawford and Louise Merrett. Professor Karton was awarded the International & Comparative Law Quarterly Young Scholar Prize for an article based on an earlier version of Chapter Six of this book.

Contents

1. INTRODUCTION; PART 1: A CULTURAL THEORY OF INTERNATIONAL ARBITRAL DECISION-MAKING; 2. STUDYING INTERNATIONAL ARBITRAL CULTURE; 3. NORMS ARISING FROM THE INSTITUTIONAL STRUCTURE OF INTERNATIONAL COMMERCIAL ARBITRATION; 4. NORMS ARISING FROM THE VALUES SHARED BY INTERNATIONAL COMMERCIAL ARBITRATORS; PART 2: INTERNATIONAL ARBITRATION CULTURE AND CONTRACT LAW; 5. SUBSTANTIVE LAW DETERMINATIONS IN INTERNATIONAL COMMERCIAL ARBITRATION: THE LEGAL RULES; 6. CASE STUDY 1: SUSPENSION OF PERFORMANCE; 7. CASE STUDY 2: THE INTERPRETATION OF CONTRACTS; 8. THE FUTURE OF CONTRACT LAW